Bringus v. Elferts, No. 3:2015cv03111 - Document 3 (N.D. Iowa 2015)
Court Description: INITIAL REVIEW ORDER granting 1 MOTION for Leave to Proceed in forma pauperis filed by Jason Bringus. The clerk's office is directed to file the complaint without the prepayment of the filing fee. Plaintiff is directed to make monthly payme nt of 20 percent of the preceding month's income credited to his account at the prison. The clerk's office is directed to send a copy of this order and the notice of collection of filing fee to the appropriate official at the place where t he plaintiff is an inmate. The clerk's office is directed to serve the complaint on the defendant and mail a copy of the complaint to the Webster County Attorney with a copy of this order. Defendant is directed to file an answer or other dispo sitive motion by no later than 9/30/2015. Signed by Magistrate Judge Leonard T Strand on 8/26/15. (copy w/nef mailed to Plaintiff and to Warden at Clarinda Correctional Facility; copy w/nef and complaint mailed to defendant and Webster County Attorney) (djs)
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Bringus v. Elferts Doc. 3 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA CENTRAL DIVISION JASON BRINGUS, Plaintiff, No. C15-3111-MWB vs. STEVE ELFERTS, INITIAL REVIEW ORDER Defendant. ____________________________ This matter is before me on the plaintiff’s application to proceed in forma pauperis (Doc. No. 1). Along with that application, the plaintiff submitted a complaint (Doc. No. 1-1). I. IN FORMA PAUPERIS UNDER 28 U.S.C. § 1915 Based on the plaintiff’s application to proceed in forma pauperis, I find that the plaintiff does not have sufficient funds to pay the required filing fee. 28 U.S.C. § 1914(a) (requiring $350.00 filing fee). Thus, in forma pauperis status shall be granted to the plaintiff. See generally 28 U.S.C. § 1915. The clerk’s office shall be directed to file the plaintiff’s complaint without the prepayment of the filing fee. Although the court deemed it appropriate to grant the plaintiff in forma pauperis status, the plaintiff is required to pay the full $350.00 filing fee by making payments on an installment basis. 28 U.S.C. § 1915(b)(1); see also In re Tyler, 110 F.3d 528, 529-30 (8th Cir. 1997) (“[T]he [Prisoner Litigation Reform Act] makes prisoners responsible for their filing fees the moment the prisoner brings a civil action or files an appeal.”). The full filing fee will be collected even if the court dismisses the case because it is frivolous or malicious, fails to state a claim on which relief may be granted or seeks money damages against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). Dockets.Justia.com Here, the plaintiff must pay an initial partial filing fee in the amount of 20 percent of the greater of his average monthly account balance or average monthly deposits for the six months preceding the filing of the complaint. 28 U.S.C. § 1915(b)(1). Based on the information that the plaintiff provided, I find that the plaintiff is unable to submit an initial partial filing fee. Id. Nonetheless, the plaintiff shall be directed to “make monthly payments of 20 percent of the preceding month’s income credited to the prisoner’s account.” 28 U.S.C. § 1915(b)(2). The statute places the burden on the prisoner’s institution to collect the additional monthly payments and forward them to the court. Specifically, the prisoner shall be required to make monthly payments of 20 percent of the preceding month’s income credited to the prisoner’s account. The agency having custody of the prisoner shall forward payments from the prisoner’s account to the clerk of the court each time the amount in the account exceeds $10 until the filing fees are paid. 28 U.S.C. § 1915(b)(2). Therefore, installments shall be collected by the institution having custody of the plaintiff. Id. The clerk’s office shall send a copy of this order and the notice of collection of filing fee to the appropriate official at the place where the plaintiff is an inmate. II. THE PLAINTIFF’S COMPLAINT I am unable to determine as a matter of law whether the plaintiff’s complaint is frivolous, fails to state a claim upon which relief can be granted or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(b). Consequently, I find that the matter is best addressed after receipt of an answer or any dispositive motion deemed appropriate. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Money v. Moore, 877 F.2d 9, 10 (8th Cir. 1989). The clerk’s office shall serve the complaint on the defendant and mail a copy of the complaint to Webster County Attorney. A copy of this order is to accompany the documents being served. The 2 Webster County Attorney shall notify the court immediately if she lacks the consent of the defendant to appear generally on his behalf and submit to the jurisdiction of the court. The defendant shall file an answer or other dispositive motion by no later than September 30, 2015. IT IS THEREFORE ORDERED: (1) The plaintiff’s application to proceed in forma pauperis (Doc. No. 1) is granted. (2) The clerk’s office is directed to file the complaint (Doc. No. 1-1) as a new entry without the prepayment of the filing fee. (3) The plaintiff is directed to make monthly payments of 20 percent of the preceding month’s income credited to his account at the prison. (4) The institution having custody of the plaintiff is directed to collect and remit monthly payments in the manner set forth in 28 U.S.C. § 1915(b)(2). Until the $350.00 filing fee is paid in full, the plaintiff is obligated to pay and the institution having custody of him is obligated to forward 20 percent of the preceding month’s income credited to his account each time the amount in the account exceeds $10.00. (5) The clerk’s office is directed to send a copy of this order and the notice of collection of filing fee to the appropriate official at the place where the plaintiff is an inmate. (6) The clerk’s office is directed to serve the complaint on the defendant and mail a copy of the complaint to the Webster County Attorney without the prepayment of fees and costs. A copy of this order is to accompany the documents being served. The Webster County Attorney is directed to notify the court immediately if she lacks the consent of the defendant to appear generally on his behalf and submit to the jurisdiction of the court. The defendant is directed to file an answer or other dispositive motion by no later than September 30, 2015. 3 IT IS SO ORDERED. DATED this 26th day of August, 2015. ________________________________ LEONARD T. STRAND UNITED STATES MAGISTRATE JUDGE 4 TO: WARDEN/ADMINISTRATOR Clarinda Correctional Facility, Clarinda, Iowa NOTICE OF COLLECTION OF FILING FEE You are hereby given notice that Jason Bringus, #6493562, an inmate at your facility, filed the following lawsuit in the United States District Court for the Northern District of Iowa: Bringus v. Elferts, Case No. C15-3111-MWB. The inmate was granted in forma pauperis status pursuant to 28 U.S.C. § 1915(b), which requires partial payments of the $350.00 filing fee. Based on the inmate’s account information, the court has not assessed an initial partial filing fee. See 28 U.S.C. § 1915(b)(1). Nonetheless, the [inmate] shall be required to make monthly payments of 20 percent of the preceding month’s income credited to [his] account. The agency having custody of the [inmate] shall forward payments from [his] account to the clerk of the court each time the amount in the account exceeds $10 until the filing fees are paid. 28 U.S.C. § 1915(b)(2). Therefore, you must monitor the account and send payments to the clerk of court according to the system provided in 28 U.S.C. § 1915(b)(2), that is, you should begin making monthly payments of 20 percent of the preceding month’s income credited to the inmate’s account. Please make the appropriate arrangements to have these fees deducted and sent to the court as instructed. /s/ djs, Deputy Clerk _______________________ Robert L. Phelps U.S. District Court Clerk Northern District of Iowa NOTICE OF LAWSUIT and REQUEST FOR WAIVER OF SERVICE OF SUMMONS TO THE NAMED DEFENDANT(S) IN THE FOLLOWING CAPTIONED ACTION: IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA CENTRAL DIVISION JASON BRINGUS, Plaintiff, No. C15-3111-MWB vs. STEVE ELFERTS, Defendant. ____________________________ A lawsuit has been commenced against you (or the entity on whose behalf you are addressed). A copy of the complaint and a copy of the corresponding order from this court are attached. This complaint has been filed in the United States District Court for the Northern District of Iowa. Pursuant to Rule 4 of the Federal Rules of Civil Procedure, you have an obligation to cooperate in saving unnecessary costs of service of summons and complaint. Please sign the enclosed document where appropriate acknowledging receipt of the complaint and notice of this pending lawsuit and waiving formal service of summons. After signing the enclosed document, please return it to the United States Clerk’s Office in the envelope provided 8/26/2015 within thirty (30) days of this date: . I affirm that this notice and request for waiver of service of summons is being sent to you on behalf of the plaintiff, this August 26 , 2015. /s/ djs, Deputy Clerk Signature (Clerk’s Office Official) Northern District of Iowa ACKNOWLEDGMENT OF RECEIPT OF NOTICE OF LAWSUIT, and WAIVER OF SERVICE OF SUMMONS 08/26/2015 (**Return this document within thirty days after ______________________________, to the United States Clerk’s Office in the envelope provided.) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA CENTRAL DIVISION JASON BRINGUS, Plaintiff, No. C15-3111-MWB vs. STEVE ELFERTS, Defendant. ____________________________ I acknowledge receipt of the complaint and notice of the lawsuit in which I (or the entity on whose behalf I am addressed) have been named a defendant. I have received and/or read the complaint accompanying this document. I agree to save the cost of service of a summons and an additional copy of the complaint by not requiring that I (or the entity on whose behalf I am acting) be served with judicial process in the manner provided by Rule 4 of the Federal Rules of Civil Procedure. I hereby waive service of summons. I (or the entity on whose behalf I am acting) will retain all defenses or objections to the lawsuit or to the jurisdiction or venue of the court except for objections based on a defect in the service of summons. I understand that a judgment may be entered against me (or the entity on whose behalf I am acting) if an answer or motion under Rule 08/26/2015 12 of the Federal Rules of Civil Procedure is not served within 60 days after , (the date Notice, Waiver and corresponding documents were sent). Date Date Signature Printed name As (Title) Signature Printed name As (Title) of (Entity) of (Entity) Date Date Date Date Date Date Signature Printed name As (Title) Signature Printed name As (Title) Signature Printed name As (Title) Signature Printed name As (Title) Signature Printed name As (Title) Signature Printed name As (Title) of (Entity) of (Entity) of (Entity) of (Entity) of (Entity) of (Entity) Address Form Case Number: C15-3111-MWB To: RE: Date: August 26, 2015 Clerk of Court Service on Named Defendant Below, please find the known (or likely) addresses for the following persons/entities who have been named as defendants to this action: Defendant: Steve Elferts Webster County Jail 702 1st Ave. S. Fort Dodge, Iowa 50501 9
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